Common Law and Equity

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The Development of Common Law and Equity

Common Law has been functioning in England since the 1250’s, two centuries after William the Conqueror defeated Earl Harold Godwinson in the Battle of Hastings in 1066 and became King. It was then in 1066 that Law began to be standardised. There were, however, problems with the Common Law system and people were becoming dissatisfied with the remedies distributed by the Court. As a result, the Court of Chancery was established and could provide whatever remedy best suited the case. This type of justice became known as equity.

When William the Conqueror gained the English throne in 1066, he constituted the Curia Regis, an instrument he used to govern the country and a court for deciding disputes. Representatives from the Regis were sent out to the different localities of the country to check local administration and were ordered to make judgement of the effectiveness of the custom laws functioning in their designated locality and report back to the King in Westminster. When the representatives were summoned back, they were able to discuss the various customs of each locality and were able to form, through rejecting unreasonable laws and accepting those that appeared to be rational, a consistent body of rules. During the process of sifting, the principle of ‘stare decisis’ was created, which translates to ‘let the decision stand’. Whenever a new problem of law was to be decided, the decision formed a rule and it was mandatory that the rule was followed in all similar cases. By 1250, a common law had been established, that ruled the whole country.

However problems soon arose regarding the remedies distributed by the Common Law Court and people soon became dissatisfied with the system. One of the first complaints was concerned with the writ system. In the common law courts, civil actions had to be started by a writ. Early on, new writs were created to suit new circumstances, however this stopped in the thirteenth century. Litigants had to fit their circumstances to one of the available types of writ. If the case did not fall into the existing writ, the case could not be taken to court. Many people found their cases to be rejected for the reason that there was no writ to satisfy their case and so they were not given justice. A second complaint was related to the remedy of damages. What the court did not realise was that money was not always an adequate solution to every problem. A final problem that arose with the system was that it was inflexible. The principle of ‘stare decisis’ meant that when a decision was given in a case of a certain kind, the same legal principle had to be followed in subsequent cases, no matter what the situation of the claimant.

As a result, people started to petition the king who was thought of as the ‘fountain of justice’. After a while, the king passed on these petitions to the Chancellor who was usually a member of the clergy and was thought of as ‘the keeper of the king’s conscience’. Before long, litigants began to petition the Chancellor himself and by 1474 the Chancellor had begun to make decisions on the cases on his own authority rather than as a substitute for the king. This was the beginning of the court of Chancery. In the court of Chancery, litigants appeared before the Chancellor and he would deliver a verdict on the presented case based on his own moral view of the situation. Unlike the Common Law court, the court of Chancery could provide whatever remedy best suited the case and this type of justice became known as equity.

Before equitable rules could be applied, equity devised maxims, developed to certify that the verdicts made were morally fair, which had to be contemplated prior to a final court decision. One of these maxims, “He who comes to equity must come with clean hands”, states that claimants who have in some way been in the wrong in the past will not be granted an equitable remedy. An example illustrating this maxim would...
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